Common use of Inconsistent Use Clause in Contracts

Inconsistent Use. (a) If AT&T finds that CUSTOMER (or any Intermediate Reseller), is using AT&T's corporate or trade names, logos, trademarks, service marks, trade dress or other symbols that serve to distinguish AT&T from its competitors in a manner inconsistent with Section 6.1. of this Agreement (an "Inconsistent Use"), AT&T shall provide notice of such Inconsistent Use to CUSTOMER. The exclusive means and remedy for settling any dispute between the parties as to whether a particular use constitutes an Inconsistent Use shall be an arbitration conducted under the Non-Administered Arbitration Rules (the "Rules") of the CPR Institute for Dispute Resolution (the "CPR Institute"), except as otherwise provided in this Agreement. In the case of a conflict between this Agreement and the Rules, this Agreement will govern. (b) If AT&T provides notice to CUSTOMER of an Inconsistent Use, and, within 30 days after the receipt of such notice, CUSTOMER either (1) cures the Inconsistent Use or takes appropriate commercially reasonable efforts to prevent an Intermediate Reseller from continuing such use (which efforts shall include ceasing to provide service to the Intermediate Reseller, if necessary), (2) demonstrates that no Inconsistent Use occurred, or (3) demonstrates that no person responsible for the Inconsistent Use was either CUSTOMER, an Affiliate of CUSTOMER, an Intermediate Reseller, or an employee, agent or independently contracted sales representative of any of them, then there shall be no loss of discount arising out of the use that gave rise to the notice. If CUSTOMER thereafter seeks to contest AT&T's determination that the use was an Inconsistent Use, CUSTOMER must institute an arbitration under the Section. If CUSTOMER does not obtain a ruling in such arbitration that the use was not an Inconsistent Use, CUSTOMER shall be precluded from repeating such use (and shall take appropriate, commercially reasonable measures to ensure that no Intermediate Reseller repeats such use). (c) If AT&T provides notice to CUSTOMER of an Inconsistent Use, and CUSTOMER does not avoid the withholding of discount by accomplishing one of the steps described in (1) through (3) of Section 6.2(b) within the specified period, the discounts and credits set forth in Attachment A will not apply beginning as of the date AT&T's notice is given and ending as of the date that CUSTOMER accomplishes one of the steps described in (a) through (c) of Section 6.2(b). Any such suspension of discounts shall not relieve CUSTOMER from its obligations to comply with any other conditions contained in this Agreement. (d) If CUSTOMER seeks to contest AT&T's determination that the use was an Inconsistent Use, CUSTOMER shall institute an arbitration as provided below. If CUSTOMER does not institute such an arbitration, CUSTOMER shall be precluded from contesting AT&T's determination that the use was an Inconsistent Use. If the Arbitrator decides that the use giving rise to the notice was not an Inconsistent Use, any discounts that were not applied as a result of the use will be restored and applied to CUSTOMER's account as a credit. (e) To institute an arbitration under this subsection, CUSTOMER shall submit the dispute to a tribunal of three arbitrators to be selected jointly by the parties, or, at the option of either party, to be selected by the procedures established under the then-current rules of the CPR Institute for the selection of arbitrators. Each of the arbitrators shall be an attorney with not less than ten (10) years experience in the practice of trademark law. The parties shall cooperate in good faith to achieve a prompt resolution of the arbitration. In the event that the parties, in consultation with the CPR Institute, determine that a panel of three qualified arbitrators cannot be appointed pursuant to this procedure, the parties will work in good faith, in consultation with the CPR Institute, to implement an alternative process for appointing a panel of three qualified arbitrators. (f) The arbitration panel will determine whether the use that gave rise to the notice constitutes an Inconsistent Use, and the parties will comply with such interpretation. Judgment on the award of the arbitration panel may be entered in any court or administrative body having jurisdiction. (g) Initially, all administrative fees of the CPR Institute and all Arbitrator compensation ("Arbitration Fees") shall be borne equally by CUSTOMER and AT&T. At the conclusion of the arbitration, the arbitration panel shall award to the prevailing party (as AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT 22 - 18 - determined by the arbitration panel), the Arbitration Fees paid by such party. Each party shall bear the expense of its own counsel, experts, witnesses, preparation and presentation of proofs, travel, and other out-of-pocket expenses.

Inconsistent Use. (a) If AT&T finds that CUSTOMER (or any Intermediate Reseller)Tel-Save, in connection with its resale of the Services provided under this Agreement, is using AT&T's corporate or trade names, logos, trademarks, service marks, trade dress or other symbols that serve to identify and distinguish AT&T from its competitors competitors, in a manner inconsistent with the provisions of Section 6.1. of this Agreement 8.1 (an "Inconsistent Use"), Tel-Save shall be liable for liquidated damages in the amount of $100,000 per day until such time as the Inconsistent Use has ended, subject to the phase-in schedule described in Section 8.2(b). If the Inconsistent Use consists of * * * , the liquidated damages will not apply until 24 hours after AT&T provides notice to Tel-Save of the Inconsistent Use. (b) Tel-Save's liability for liquidated damages for an Inconsistent Use shall be phased in according to the following schedule * * * (c) Tel-Save shall take such steps that are reasonably possible to ensure that no Intermediate Carriers takes any action that, if done directly by Tel-Save, would constitute an Inconsistent Use. If an Intermediate Carrier does take such action, Tel-Save shall take all steps as are reasonably possible to cause the Inconsistent Use by the Intermediate Carrier to be ended or corrected, to AT&T's reasonable satisfaction (the "Required Steps"). To comply with this obligation to take Required Steps section, Tel-Save will do the following: * * * (d) If AT&T finds that an Intermediate Carrier has taken action that, if done directly by Tel-Save, would constitute an Inconsistent Use, AT&T shall provide reasonable notice of such Inconsistent Use to CUSTOMERTel-Save. If Tel-Save fails, within 15 days after the receipt of such notice, to substantiate to AT&T's reasonable satisfaction that the Inconsistent Use by the Intermediate Carriers has ended or has been corrected or that Tel- 38 Save has taken the Required Steps, Tel-Save will be liable for liquidated damages in the amount calculated as described in the following sentence, for each day until such time as the Inconsistent Use by the Intermediate Carrier has ended or has been corrected to AT&T's reasonable satisfaction, or until Tel-Save has taken the Required Steps. The amount of Liquidated Damages applied per day will be equal to $100,000 times a factor, the numerator of which is the amount of AT&T charges for Services provided by AT&T under this Agreement that were resold by such Intermediate Carrier (to End Users or to other Intermediate Carriers) in the most recent billing month for which such amount is available, and the denominator of which is the total amount of AT&T charges for Services provided by AT&T under this Agreement in that same month. (e) Except to the extent provided in Section 8.l(d), the arbitration process described in Section 12.2 and 12.3 will be the exclusive means and remedy for settling any dispute between the parties as to whether a particular use constitutes an Inconsistent Use shall be an arbitration conducted under the Nonor whether Tel-Administered Arbitration Rules (the "Rules") of the CPR Institute for Dispute Resolution (the "CPR Institute"), except as otherwise provided in this Agreement. In the case of a conflict between this Agreement and the Rules, this Agreement will govern. (b) If AT&T provides notice Save has failed to CUSTOMER of take Required Steps with respect to an Inconsistent Use, and, within 30 days after the receipt of such notice, CUSTOMER either (1) cures the Inconsistent Use or takes appropriate commercially reasonable efforts to prevent by an Intermediate Reseller from continuing such use (which efforts shall include ceasing to provide service to the Intermediate Reseller, if necessary), (2) demonstrates that no Inconsistent Use occurred, or (3) demonstrates that no person responsible for the Inconsistent Use was either CUSTOMER, an Affiliate of CUSTOMER, an Intermediate Reseller, or an employee, agent or independently contracted sales representative of any of them, then there shall be no loss of discount arising out of the use that gave rise to the notice. If CUSTOMER thereafter seeks to contest AT&T's determination that the use was an Inconsistent Use, CUSTOMER must institute an arbitration under the Section. If CUSTOMER does not obtain a ruling in such arbitration that the use was not an Inconsistent Use, CUSTOMER shall be precluded from repeating such use (and shall take appropriate, commercially reasonable measures to ensure that no Intermediate Reseller repeats such use)Carrier. (c) If AT&T provides notice to CUSTOMER of an Inconsistent Use, and CUSTOMER does not avoid the withholding of discount by accomplishing one of the steps described in (1) through (3) of Section 6.2(b) within the specified period, the discounts and credits set forth in Attachment A will not apply beginning as of the date AT&T's notice is given and ending as of the date that CUSTOMER accomplishes one of the steps described in (a) through (c) of Section 6.2(b). Any such suspension of discounts shall not relieve CUSTOMER from its obligations to comply with any other conditions contained in this Agreement. (d) If CUSTOMER seeks to contest AT&T's determination that the use was an Inconsistent Use, CUSTOMER shall institute an arbitration as provided below. If CUSTOMER does not institute such an arbitration, CUSTOMER shall be precluded from contesting AT&T's determination that the use was an Inconsistent Use. If the Arbitrator decides that the use giving rise to the notice was not an Inconsistent Use, any discounts that were not applied as a result of the use will be restored and applied to CUSTOMER's account as a credit. (e) To institute an arbitration under this subsection, CUSTOMER shall submit the dispute to a tribunal of three arbitrators to be selected jointly by the parties, or, at the option of either party, to be selected by the procedures established under the then-current rules of the CPR Institute for the selection of arbitrators. Each of the arbitrators shall be an attorney with not less than ten (10) years experience in the practice of trademark law. The parties shall cooperate in good faith to achieve a prompt resolution of the arbitration. In the event that the parties, in consultation with the CPR Institute, determine that a panel of three qualified arbitrators cannot be appointed pursuant to this procedure, the parties will work in good faith, in consultation with the CPR Institute, to implement an alternative process for appointing a panel of three qualified arbitrators. (f) The arbitration panel will determine whether the use that gave rise to the notice constitutes an Inconsistent Use, and the parties will comply with such interpretation. Judgment on the award of the arbitration panel may be entered in any court or administrative body having jurisdiction. (g) Initially, all administrative fees of the CPR Institute and all Arbitrator compensation ("Arbitration Fees") shall be borne equally by CUSTOMER and AT&T. At the conclusion of the arbitration, the arbitration panel shall award to the prevailing party (as AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT 22 - 18 - determined by the arbitration panel), the Arbitration Fees paid by such party. Each party shall bear the expense of its own counsel, experts, witnesses, preparation and presentation of proofs, travel, and other out-of-pocket expenses.